Gillard: Is it Easy to Divorce in Belgium? What About Alimony?

A: As you may have heard in the media, a law known as the Law of 27 April 2007 modified the divorce procedure in Belgium.

The main consequence of this modification is that there is now only one cause for divorce, the désunion irremediable, which we could translate as irreparable division. (This is similar to the concept of “irreconcilable differences” applied in some American courts.) There is therefore only one thing that must be demonstrated to obtain a divorce under Belgium law: that there is an irreparable division between the spouses.

There is a legal presumption of irreparable division when the spouses have been living separately during more than one year. In this case the divorce will be granted immediately.

If a year’s separation has not taken place, but both spouses agree to the divorce, then the court will order six months of separation before the couple is legally divorced.

A separation of six or 12 months is not always required; the irreparable division can also be proven by all legal means. For example, if a spouse can prove adultery, violence between the spouses, violence against the children or anything that could demonstrate that the marriage has reached an irreparable division, the divorce can be obtained in a shorter period of time.

The procedure for the divorce itself has been simplified by the new law but – as is often the case – the main difficulties come when couples need to make decisions concerning the patrimony (the division of assets and possible child support payments in addition to alimony) and custody of the children.

Indeed, the other key modification made by the new law concerns alimony after divorce, and the calculation of it. Alimony is now ruled by article 301 of the Belgian Civil code. This article explains that an ex-spouse who meets the definition of being “in need” can ask the other ex-spouse for alimony.

The concept of “need” has been discussed by authors and courts for a long time. But in fact, a divorced person need not be “out on the streets” to be entitled to alimony. The judge will consider the facts of the situation to decide whether the ex-spouse is really in need of an alimony or if – even by returning to work – he or she could earn enough to support him/herself.

The calculation of the alimony is quite complicated and can vary depending on which judge hears the case, but primarily it varies in consideration of the facts of the matter. However, the two main principles are that: 1. Alimony can not exceed one-third of the income of the paying ex-spouse; and 2. The period during which alimony will be granted cannot exceed the duration of the marriage.

The calculation in itself will depend on how significantly the economic situation of the person demanding alimony will be degraded by the divorce. To appreciate the level of degradation, the judge will consider the duration of the marriage, the age of the spouses, the organization of the family during the marriage, the burden of the children during common life, etc. The judge can also order alimony payments that decrease over time.

A person getting a divorce who applies to the court for alimony will be asked to explain the marital situation clearly to the judge, describing how the couple – and any children – has lived during the marriage. Has one of the spouses stopped working to take care of the children, or because relocation to another country made finding a job impossible for him/her?

The judge will make a decision on the basis of all of these elements.

The other main question following a divorce is the custody of the children. We will examine this in an upcoming column.